In foreclosure action, plaintiff appealed from order of the Supreme Court, Richmond County, Leone, J., from denial of summary judgment motion. Supreme Court, Appellate Division, held that because no discovery had yet been conducted, denial of summary judgment was warranted. Affirmed.

West HeadnotesJudgment 186228k186 Most Cited CasesIn foreclosure action, summary judgment was not warranted where plaintiff's motion was made before any discovery was conducted and many of essential issues of fact were solely within plaintiff's knowledge. **496 Nizza & O'Brien, West Hempstead (Robert W. O'Brien, of counsel), for appellant. Kirschenbaum & Kirschenbaum, P.C., Garden City (Burton Aronson, on the brief), for respondents.

Before SULLIVAN, J.P., and BALLETTA, ROSENBLATT and FLORIO, JJ.

**497 *704 MEMORANDUM BY THE COURT. In a foreclosure action, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Richmond County (Leone, J.), dated May 10, 1993, as denied the branch of its motion which was for summary judgment. ORDERED that the order is affirmed insofar as appealed from, with costs. The plaintiff failed to establish its entitlement to summary judgment (see, Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642). In any event, the plaintiff's motion was made before any discovery was conducted, and many of the essential issues of fact in this case are solely within the knowledge of the plaintiff. Hence, summary judgment is not warranted (see, Lewis v. Agency Rent-A-Car, 168 A.D.2d 435, 562 N.Y.S.2d 558). We find no merit to the plaintiff's remaining contentions.617 N.Y.S.2d 496, 208 A.D.2d 704END OF DOCUMENT